High Court: Dyslexic child did not receive appropriate education support from Minister for Education

About this case:

• Citation:
  [2022] IEHC 379
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

The child’s mother had previously been told that a new specialist class would be available for her son, but this decision was subsequently revoked by the Minister and described as an error. Delivering judgment in the case, Mr Justice Anthony Barr held that the child did not have a legitimate expectation that the class would be available for the child.

Background

The child was in second class in primary school when it became apparent that he had difficulties with reading. He was sent to an expert for assessment in 2020 and 2021. It was determined that the child had severe dyslexia and would benefit from intensive support in a class with a greatly reduced pupil/teacher ratio.

It was recommended that the child attend a reading unit, known as a Specific Learning Disability Special Class. However, since 2017, the Minister for Education had adopted a policy where students with disabilities were accommodated in mainstream school settings insofar as was possible. Special Education Teachers were allocated to schools to assist with this objective. Accordingly, the Department of Education had not sanctioned a new dedicated SLD class since 2011, although existing classes at that time remained in place.

In April 2021, the child’s mother was informed that an SLD class had been sanctioned by the Minister for Education for the child’s school. However, three weeks later, the mother was informed that the sanction had been withdrawn. It was said that the original sanction was an error on the part of the National Council for Special Education, which implements policies on behalf of the Minister.

Subsequently, the mother issued proceedings against the Minister and the NCSE, claiming that her son was being educated in an inappropriate setting. As part of the proceedings, the mother exhibited a letter from the school principal which outlined that it was not in a position to meet the child’s needs given the severity of his condition.

In response, the respondents stated that the NCSE, through Special Education Needs Organisers, engaged with parents and schools on an ongoing basis regarding the allocation of special education resources. It was explained that SENOs in the area became aware of a demand for SLD classes in March 2021 and the school indicated that it was willing to accommodate an SLD class. As such, the local SENO sanctioned the class.

However, this sanction was not in line with the Minister’s 2017 policy which provided for SETs to be placed in schools so that children with learning difficulties could remain in a mainstream setting. It was stated that this decision arose from working group recommendations that inclusive environments were preferable for learning disabilities. It was therefore explained that the sanction was a mistake and the decision was revoked as soon as the respondents became aware of it.

The school was contacted by the NCSE in June 2021 with an offer to carry out a review of the SET allocation. The Department had sanctioned an additional 15 SET hours for the remainder of the academic year through 2021.

It was argued that the school should be able to organise its allocated resourced to ensure that the child got additional teaching support and that therefore the child was in an appropriate environment.

High Court

The High Court began by considering the new 2017 model. It was accepted by the applicants that the model was a good policy in general. The court held that it did not have jurisdiction to intervene in a policy that had been pursued by the Minister. Policy decisions were matters for the Executive and Legislature (Sinnott v. Minister for Education [2001] IESC 63). Further, the court was satisfied that the policy accorded with the provisions of the Education Act 1998 and the Education of Persons with Special Education Needs Act 2004.

The court then considered whether the Minister had adopted an inflexible policy which effectively prevented any new SLD classes being created. It was held that the policy did not prohibit the establishment of new classes and it was noted that the Minister continued to fund existing SLD classes.

However, the court noted that the Minister had “pretty firmly set her mind against” establishing new SLD classes based on her actions since 2011. Further, it was said to be “extraordinary” that experts in special education would sanction a new SLD class in April 2021 when no such classes had been funded since 2011. It raised questions as to the level of communication between the Minister and the NCSE, and what would happen to the students in the relevant area who the SENO considered could not be catered for without an SLD class.

As such, the court held that the Minister countermanded the decision to sanction the SLD class without considering whether the class was necessary. As such, the court held that the Minister had adopted an inflexible policy against creating SLD classes.

The court went on to consider whether the applicants could rely on a legitimate expectation that the class would be available. Applying the case law, the court held that the doctrine could only apply to a deliberate representation or practice adopted by a State body. In this case, the sanction was an error which was corrected promptly. Where a representation was a genuine error and corrected quickly, there could be no reliance on a legitimate expectation, the court said.

Further, there was no evidence that the applicants had placed any reliance on the representation that the SLD class had been sanctioned.

Finally, the court held that the child was not receiving an appropriate education. The court noted the fundamental constitutional right to an education and the obligations on the State to make provision for this right (O’Donoghue v. Minister for Health [1996] 2 IR 20; Sinnott). The court held that an appropriate education did not mean that a parent could choose the exact nature of the care that their child received (O’Carolan v. Minister for Education and Science [2005] IEHC 296).

There was a clear statement from the school that it could not cater for the child’s education, and this was not contradicted by the State. Considering the evidence from the expert as to the child’s educational needs, the court held that the child was not receiving (and would not get) an appropriate education at the school.

Conclusion

The court noted that there was an ongoing review of the Minister’s policy on SLD classes and that the NCSE was developing policy advice for special education. Additionally, the court noted that further SET hours were sanctioned for the school.

Accordingly, the court granted a declaration that the child did not receive an appropriate education until November 2021 and deferred making any final order on the current situation pending the outcome of the ongoing reviews. It was expected that the expert would review the additional SET allocation to assess whether the child’s needs would be met. The matter would be re-argued if the parties disagreed on this issue.

Fagan and Anor. v. The Minister for Education and Skills and Ors. [2022] IEHC 379